IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120021917 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her narrative reason for separation as "disability - medical retirement" instead of "disability, existed prior to service (EPTS), physical evaluation board (PEB)."

2.  The applicant states the narrative reason for separation listed on her DD Form 214 was "Disability, Existed Prior to Service, Physical Evaluation Board (PEB)."  She did not have depression prior to service and her depression was aggravated by service.  Her initial and final medical examinations support her contention.

3.  The applicant provides:

* Standard Form (SF) 88 (Report of Medical Examination), dated 
11 February 1998
* SF 93 (Report of Medical History), dated 11 February 1998
* Medical Command (MEDCOM) Form 669-8 (Army Health Professionals Scholarship Program (HPSP) Report of Periodic Medical Examination), dated 12 April 2001
* DD Form 2008 (Report of Medical Examination), dated 20 March 2006
* DD Form 2807-1 (Report of Medical History) and additional remarks, dated 20 March 2006
* Optional Form (OF) 275 (Psychiatric Medical Evaluation Board (MEB), Narrative Summary (NARSUM)), dated 24 April 2006
* MEB NARSUM, dated 21 February 2007
* DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings), dated 1 August 2007
* DD Form 214
* Department of Veterans Affairs (VA) rating decision, dated 28 January 2009
* Two DD Forms 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), dated 9 February 2011 and 22 October 2012
* Letter from the PDBR, dated 29 March 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 9 June 1998.

3.  Her record contains a U.S. Army Recruiting Command (USAREC) Form 1131-R-E (Department of the Army Service Agreement - F. Edward Herbert Armed Forces Health Professionals Scholarship Program (AFHPSP), dated 9 June 1998.  The HPSP agreement indicated that as an HPSP scholarship selectee she would be commissioned as a second lieutenant in the U.S. Army Reserve (USAR) and placed on inactive Reserve status during her medical training.  During her time as an inactive reservist, she would be required to serve 45 days of active duty for training (ADT) each fiscal year.  Additionally, upon graduation, she would be promoted to the rank of captain (CPT) and be placed on active duty.

4.  On 14 August 1998, the U.S. Total Army Personnel Command (currently referred to as the U.S. Army Human Resources Command (HRC)), St. Louis, MO published Orders C-08-300418, assigning her to the inactive Reserve with an effective date of 9 June 1998.
5.  She attended Touro University - College of Osteopathic Medicine from the Fall of 1998 through the Spring of 2002.  She was awarded a degree of Doctor of Osteopathic Medicine on 19 May 2002. 

6.  On 19 May 2002, she was appointed as a Reserve commissioned officer in the rank of captain, with concurrent call to active duty.

7.  She entered active duty on 3 June 2002 and she was assigned to the U.S. Army Medical Activity, Fort Belvoir, VA. 

8.  In or around July 2005, she was reassigned to C Company, Tripler Army Medical Center, HI.

9.  During the processing of this case an email was obtained from an official at the Office of the Surgeon General that contained a NARSUM and MEB/PEB proceedings.

	a.  The NARSUM, dated 17 April 2007, listed her chief complaint as chronic depression and shows her medical records indicated her first onset/episode of depression occurred in May 2005.  She was diagnosed with major depression, recurrent severe; anxiety disorder not otherwise specified (NOS), and post-partum depression.  It was noted that she had chronic and progressive depression and anxiety and it was unlikely that her depression would remit, even with medication and therapy.  Her psychiatric symptoms may be controlled but may never be completely resolved.  Her doctor felt her mood episodes and chronic anxiety would contribute to physical, emotional, financial, and interpersonal damage and stated she absolutely could not be retained by the Army.  Her doctor concluded she failed to meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-32, mood disorders.  He further recommended the applicant be referred to a PEB for further adjudication.

	b.  Her MEB, dated 15 June 2007, evaluated her for a major depressive disorder, recurrent, severe in accordance with Army Regulation 40-501, paragraph 3-32.  The MEB noted the approximate onset of the condition was in 
2005, the illness or injury occurred while she was entitled to base pay, and it did not exist prior to service.  Additionally, the MEB referred her to a PEB.

	c.  Her PEB, dated 10 August 2007, evaluated her for Major Depressive Disorder, and indicated the onset occurred in 1999, prior to entrance into military service.  Her symptoms included recurrent depression, insomnia, poor concentration, lack of organization, and tearful moods.  Her condition resulted in a hospitalization for suicidal ideations in March 2006 for 4 days.  As a medical officer, she was considered unfit for further military service due to the suspension of her credentials and the loss of clinical privileges.  Her condition existed prior to military service and it was not permanently aggravated by military service.  The severity of her condition was due to the natural progression of the disease and perhaps to factors other than those unique to military experience.  Her condition was not compensable.

		(1)  The PEB indicated that her functional limitations in maintaining the appropriate level of adaptability, caused by the physical impairments recorded above, made her medically unfit to perform the duties required of a Soldier of her rank and primary specialty.

		(2)  The PEB further indicated her unfitting condition was found to be not service-incurred or permanently aggravated.  Her impairment existed prior to entitlement to basic pay and her disability has increased only to the extent of its accepted normal and natural progression; therefore, there was no permanent service aggravation.  Because her condition was not service incurred or permanently aggravated, she was ineligible for disability compensation and was, therefore, recommended for separation without disability benefits.

10.  On 24 October 2007, she was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4) by reason of "disability, existed prior to service, PEB."  She was assigned a separation program designator (SPD) code of "JFM."

11.  She provided an SF 88 and an SF 93, dated 11 February 1998 and a MEDCOM Form 669-8, dated 12 April 2001.  These forms do not indicate she was or had been suffering from or being treated for depression.

12.  She provided a DD Form 2808 and DD Form 2697, dated 20 March 2006, showing she had been diagnosed with Major Depressive Disorder and she had been receiving treatment.

13.  She provided a DD Form 2807-1, dated 20 March 2006, that contained a continuation page containing and additional remarks from item 29 (Explanation of "Yes" answers).  This continuation page shows she checked yes to the following conditions listed under item 17a:

* frequent trouble sleeping - insomnia secondary to depression which was treated with antidepressants and Ambien
* received counseling of any type - she was previously counseled for depression in 1999, 2003, and 2004
* depression or excessive worry - history of Major Depression with recent admission in medical record
* evaluated or treated for a mental condition 

14.  She provided an OF 275, dated 24 April 2006, that indicated she suffered from her first mild depressive disorder during medical school; however, there is no other mention of depression predating 2005.

15.  She provided a NARSUM, dated 21 February 2007, that makes no mention of depression predating 2005.

16.  She provided a VA rating decision, dated 28 January 2009, that shows she was awarded a 30-percent disability rating for major depressive disorder.

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

18.  Army Regulation 635-40, chapter 4, provides for the separation of Soldiers found to be unfit by a PEB due to a condition that existed prior to service or occurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

19.  Army Regulation 635-40, Table B-10 (rating of disabilities aggravated by active service) states when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.  This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.  Therefore, it is necessary to deduct from the present degree of disability, if ascertainable, the degree of disability existing at the time of entrance into active service and also the natural progression that has occurred during active service in terms of the rating schedule.

20.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty.  The SPD code "JFM" is the correct code for Soldiers separating under the provisions of Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay).

DISCUSSION AND CONCLUSIONS:

1.  The applicant suffered from a medical condition - Major Depressive Disorder- that rendered her unable to reasonably perform the duties of her grade and military specialty.  She underwent an MEB that referred her to a PEB.  The PEB noted the applicant had the onset of her depressive disorder in 1999, prior to her entry on active duty and entitlement to basic pay.

2.  The applicant provided an OF 275 which indicated she suffered from her first mild depressive disorder during medical school.  Therefore, it appears that her depression did not start while she was entitled to basic pay (i.e., during an ADT period).

3.  When the Soldier's military service makes the condition worse or hastens the natural progression of the condition beyond the normal or anticipated rate had he or she not been exposed to such service, a finding of aggravation must be 
considered.  In the applicant's case, the PEB also noted that not only did the condition exist prior to active duty, but it also had not been aggravated by her military service.  It appears the severity of the condition was due to natural progression of the disease or to a non-military related condition (post-partum depression). 

4.  The PEB found her medically unfit and found compelling evidence to support a finding that she had an EPTS condition that was not permanently aggravated by military service.  Accordingly, the PEB recommended her separation by reason of physical disability without entitlement to severance pay.

5.  Her narrative reason for separation was assigned based on the fact she was separated under the provisions of Army Regulation 635-40, paragraph 4-24b(4) due to her EPTS condition of major depressive disorder.  Absent the medical condition, there was no fundamental reason to convene an MEB and/or a PEB.  The underlying reason for her MEB/PEB was her EPTS condition.  The only valid narrative reason for separation permitted under that paragraph is "disability, EPTS."  Therefore, the applicant received the proper narrative reason for separation.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 
are insufficient as a basis for correction of the records of the individual concerned.



      ____________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120021917



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021917



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1